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ELCDismissedNot stated in judgment (notice of motion dated 5th October 2017)· [2018] KEELC 3571 (KLR)

Eri Limited v Equatorial Commercial Bank (Formerly Southern Credit Banking Corporation Ltd ) & another [2018] KEELC 3571 (KLR)

Environment and Land Court
2 May 2018
SKS. M. Kibunja
556 words in judgment
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The bottom line

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A Kenyan court refused to pause proceedings because the case had already been struck out and the company waited over a year to apply.

What this practically means

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Executive summary

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Eli Limited, the Plaintiff, moved the Environment and Land Court by notice of motion dated 5th October 2017 seeking a stay of proceedings pending the hearing and determination of its appeal against the court's ruling of 8th September 2016, which had struck out its suit as res judicata with costs. The application, supported by an affidavit of Rasik Lavji Sanghrayka, invoked Order 42 Rule 6(1) of the Civil Procedure Rules. The 2nd Defendant, Zainul Galib Velji, opposed it through a replying affidavit sworn on 2nd February 2018, and counsel made oral submissions on 6th February 2018. The court framed two issues: whether a reasonable case for stay of proceedings had been made, and costs. It held that the application sought stay of proceedings rather than stay of execution; that after the suit was struck out, the only step taken was taxation of the Defendants' bill of costs on 9th February 2018, leaving no proceedings capable of being stayed, the next logical step being execution. It declined to assess the merits of the pending appeal, that jurisdiction lying with the Court of Appeal, and found that the application was filed over a year after the ruling with no explanation, constituting inordinate delay. The notice of motion was dismissed with costs on 2nd May 2018.

Key legal issues

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01

Whether a stay of proceedings could issue pending appeal

Holding

The application failed because it sought stay of proceedings where none remained pending, and was brought after inordinate unexplained delay.

Reasoning

The court distinguished stay of proceedings from stay of execution. The suit having been struck out on 8th September 2016, the only subsequent step was taxation of the bill of costs on 9th February 2018, so nothing remained to be stayed and the next step was execution. Further, the application filed on 5th October 2017 came over a year after the ruling with no explanation. Assessment of the appeal's merits belongs to the Court of Appeal.

p. 1
02

Costs of the application

Holding

Costs were awarded against the Plaintiff as the application was without merit.

Reasoning

Having found the notice of motion unmeritorious, the court dismissed it with costs in favour of the Defendants under the second framed issue.

p. 2

Legal principles established

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  • Where a suit has been struck out, there are no pending proceedings capable of being stayed; the appropriate remedy would be stay of execution, not stay of proceedings.
  • An applicant for stay must explain any delay in bringing the application; unexplained inordinate delay is fatal.
  • It is not for the trial court to assess the merits of an appeal pending in the Court of Appeal.

Court orders

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  1. 1.The Plaintiff's notice of motion dated and filed on 5th October 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure ActNot specified
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules and provisions of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eri Limited v Equatorial Commercial Bank (Formerly Southern Credit Banking Corporation Ltd ) & another [2018] KEELC 3571 (KLR)", Case Analysis (2018). Not stated in judgment (notice of motion dated 5th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3571/eng@2018-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.